In this day and age, ideas and opinions can be publicly shared and published without any restriction or accountability by simply changing your online identity. While we are now well accustomed to this reality on the Internet, what happens when this phenomenon transposes itself into the judicial system?
That is what appears to have happened in an almost two-decade-long saga that began when François Deraspe ("Deraspe") and his former lawyer, Chantal Desjardins ("Desjardins"), filed a motion to authorize class action following an accidental Sulphur trioxide release in August 2004 at a plant operated by Canadian Electrolytic Zinc Limited ("CEZ") in Valleyfield, Quebec.
Once the class action was authorized, they filed a motion to add CEZ's parent companies as codefendants, alleging that corporate changes involving CEZ were made in fraud of class action members' rights. These allegations were later deemed abusive by the Courts and dismissed.1
This marked the beginning of a long and arduous crusade by which Desjardins and Deraspe heavily burdened the proceedings by repeatedly filing lengthy procedures, requesting the recusal of the presiding judge, filing appeals of almost every decision rendered, and often being absent at hearings.
On September 18, 2015, Deraspe and Desjardins-who has since been disbarred from the Quebec Bar2-were declared vexatious litigants and were disqualified from continuing with the class proceedings, a decision which was upheld on appeal.3
A new class representative, Jean-Luc Génier ("Génier"), was appointed with the assistance of new counsel on the file, and settlement discussions with CEZ were initiated.
Shortly after Génier and CEZ's lawyers announced to the Court that they were in the process of finalizing their settlement discussions, two lengthy statements of intervention were filed by NGO Environment and Justice ("NGO") in January and February 2020. NGO, whose legitimacy could be put into question given the non-existence of other known activities, had filed similar procedures abroad, making multiple reproaches against the Canadian justice system, as well as repeating the same conspiracy theories and obsessions that were the object of proceedings previously filed by Desjardins.
NGO was purportedly represented by one of its "coordinators" who identifies herself as Maria Alejandra Correnti, who never appeared in person in Court in the context of the proceedings initiated by NGO. Meanwhile, through a slew of procedures and letters, NGO, which was not represented by counsel, launched attacks and insinuations calling into question the good faith of everyone involved in the file. It became clear to the counsel acting in the case that this was likely a thinly veiled attempt by Desjardins to interfere once again in the file under the guise of a new identity.
Due to the global pandemic, a hearing by teleconference was scheduled for May 2020 to rule on NGO's intervention and the defendant's and impleaded third party's application to declare NGO and Correnti vexatious litigants.
In the decision issued on May 15, 20204, the Court declared NGO's intervention to be null ab initio, and concluded that nothing on the record proved the existence of this organization or its nature and that, on the contrary, the evidence suggested that the NGO does not exist.5 Evidence presented also revealed that NGO and Correnti behaved identically to Desjardins.6
In her decision, Judge Masse noted the unprecedented magnitude and international scope of the abuse and the difficulties courts have in dealing with this type of behavior, as well as the waste of judicial resources it entails.7
The Court was of the view that it was not necessary to decide whether or not Desjardins was hiding behind the identity of NGO and Correnti in order to conclude that they are vexatious litigants, as the record demonstrated that NGO and Correnti, by their obsessive and repeated behavior, unfounded procedures, and repeated attacks on counsel and judges involved in the case similar to those made by former class counsel, also deserve the qualification of quarrelsome.8 The Court imposed similar restrictions on NGO and Correnti as it had imposed earlier on the former class representative and former class counsel, against filing legal proceedings in connection with this matter.9
In addition, to prevent history from repeating itself, the Court ordered that any future intervention in the file was to be subject to the prior authorization of the judge in charge of the proceedings, requiring the registry office to refuse the filing of interventions in the file unless the authorization is attached.10
While Judge Masse's order provided the parties with a creative solution in this case, the situation calls for reflection on how the judicial system could deal more effectively with vexatious litigants and the high burden they generate.
Indeed, while COVID-19 has temporarily forced cases to advance mainly through electronic means, it is to be expected that the judicial system will continue to evolve in this direction to favour efficiency and access to justice. Virtual hearings have been introduced and will continue after the COVID-19 crisis.
In a context where it may be possible for a vexatious litigant to hide behind another identity, we should ask ourselves how we can prevent situations such as this one from reoccurring and how we can ensure that the relative anonymity afforded by technology does not otherwise pose a risk to the integrity of the judicial process.
Note : McCarthy Tétrault acted for the parent company of the defendant in this case, impleaded by "NGO Environment and Justice".
Footnotes1Deraspe c. Zinc électrolytique du Canada ltée, 2014 QCCS 1182 (CanLII) at para. 219-222, confirmed by 2014 QCCA 2266 (CanLII) ; leave application dismissed by SCC on June 4, 2015, no. 36295
2Barreau du Québec c. Desjardins, 2016 QCCDBQ 105 (CanLII) and 2017 QCCDBQ 038 (CanLII)
3Desraspe c. Zinc Électrolytique du Canada ltée, 2015 QCCS 4285 (CanLII) [Deraspe], confirmed by 2018 QCCA 256 (CanLII)
4Génier c. Zinc Électrolytique du Canada ltée, 2020 QCCS 1542 Génier
5Génier at para. 35
6Génier at para. 41-42
7Génier at para. 43
8Génier at para. 42, 45, and 47
9Génier at para. 54; Deraspe at para. 112
10Génier at para. 46-49 and 55
To view the original article click here
To view the original article click here
Originally published 17 June 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
